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 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

JOHN RUGER, 

 Plaintiff, 

 vs. Civil Action 2:11-CV-969 

 Judge Watson 

 Magistrate Judge King 

 

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant. 

 REPORT AND RECOMMENDATION 

This is an action instituted under the provisions of 42 U.S.C. 

§§405(g), 1383 for review of a final decision of the Commissioner of 

Social Security denying plaintiff’s application for supplemental 

security income. This matter is now before the Court on plaintiff’s 

Statement of Specific Errors, Doc. No. 13, and the Commissioner’s 

Memorandum in Opposition, Doc. No. 14. 

Background 

 Plaintiff John Ruger filed his current application for benefits 

on June 30, 2009, alleging that he is disabled as a result of injuries 

to his neck and shoulder.1

 The application was denied initially and 

upon reconsideration and plaintiff requested a de novo hearing before 

an administrative law judge. 

 On May 31, 2011, plaintiff, represented by counsel, participated 

 

1 Plaintiff initially alleged a disability onset date of February 2, 2008 but, 

at the administrative hearing, he amended that date to June 22, 2009. 

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in and testified at a video hearing, as did Lisa J. Goudy, who 

testified as a vocational expert. In a decision dated June 10, 2011, 

the administrative law judge found that plaintiff is not disabled 

within the meaning of the Social Security Act. That decision became 

the final decision of the Commissioner of Social Security when the 

Appeals Council declined review on September 14, 2011. 

 Plaintiff was 50 years old at the time he applied for benefits. 

He has a 9th grade education and prior relevant work experience as a 

logger, which required heavy exertion, but which involved no skills 

that would be transferrable to light jobs. See PAGEID 107. Under the 

Medical-Vocational Guidelines, if plaintiff’s impairments limit him to 

sedentary exertion, he would be characterized as disabled. See Rule 

201.10, Pt. 404, Subpt. P., App. 2. 

Medical Evidence

 In May 2006, plaintiff suffered a work-related grade I open left 

tibia/fibula fracture for which he underwent open reduction internal 

fixation. In 2007, he underwent two procedures to remove the screws 

because of pain. PAGEID 368-69. In June 2007, Jeffrey McElroy, 

M.D., plaintiff’s treating orthopedic surgeon, released plaintiff to 

“return to work in a protected environment.” PAGEID 366. 

 In December 2008, plaintiff underwent a consultative examination 

by William N. Grant, M.D., in connection with his worker’s 

compensation claim for this work-related leg injury. Dr. Grant noted 

that plaintiff walked with an obvious limp; he diagnosed a malalignment of the tibial shaft. Dr. Grant allocated a 12% whole person 

impairment to the mal-alignment, a 5% whole person impairment to the 

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failed surgery for the repair of the leg fracture and a 3% whole 

person impairment for plaintiff’s pain. PAGEID 616-17. 

 Plaintiff was involved in a motor vehicle accident in February 

2008. At the emergency room, plaintiff complained of pain upon 

movement of the neck. PAGEID 464. A CT scan of the cervical spine 

show a nondisplaced facture at the transverse process of C6 on the 

left with a superior endplate fracture of C7. PAGEID 465. Houman 

Khosrovi, M.D., a neurosurgeon, prescribed a hard collar “for at least 

3 months until the fractures are healed.” Id. 

A February 2008 MRI of the left shoulder, ordered by Dr. Khosrovi 

because of plaintiff’s complaints of left shoulder pain, showed mild 

subacromial bursitis and bursitis/tendinitis with mild tendinopathy of 

rotator cuff tendons without full thickness tears or retraction. 

PAGEID 456. Dr. Khosrovi characterized the condition as “mild” and 

prescribed no treatment for the condition. See PAGEID 486, 488. 

In April 2008 Dr. Khosrovi ordered an MRI of the cervical spine 

because of plaintiff’s complaints of pain radiating into the left arm 

with numbness of the fingers of the left hand. See PAGEID 501. That 

MRI revealed, in addition to the fractures previously seen, a left 

foraminal disc hernation at C6-C7 with severe left foraminal stenosis. 

Id. 

In September 2008, Dr. Khosrovi performed a C7 corpectomy, C6-T1 

titanium expandable cage, C6-C7 autograft/allograft fusion, C6 to T1 

anterior cervical plating with intraoperative SSEP monitoring. See 

PAGEID 551. Immediately after that procedure, plaintiff was restricted 

to lifting no more than 10 pounds, and no pushing, pulling, bending or 

twisting. PAGEID 542, 544. By November 2008, however, Dr. Khosrovi 

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had raised that restriction to “no lifting greater than 20 lbs;” 

plaintiff was also directed to use a soft cervical collar. PAGEID 

546. 

In a January 2009 follow-up visit, plaintiff complained of 

continuing left shoulder pain, numbness in the left arm radiating to 

the fingers and intermittent neck pain. PAGEID 551. An MRI showed no 

further neurosurgical pathology. PAGEID 553. On clinical examination, 

the left upper extremity was nontender to palpation; there was no 

edema; range of motion was normal; there was no crepitus; there was 

no pain with motion. Id. Strength in the left upper extremity was 

normal except 4+/5 in the deltoid and thumb opposition. Id. Motor 

function of the left upper extremity was normal. Id. Sensation to 

light touch was intact in all four extremities. Id. 

In July 2009, plaintiff saw Anurag Sahu, M.D., a cardiologist, 

for evaluation following an abnormal EKG and complaints of dyspnea. 

Testing disclosed sinus tachycardia and nonspecific ST-T wave 

abnormalities. PAGEID 564. However, a 2D echocardiogram showed 

normal LV systolic and diastolic function, without significant 

valvular disease, and a nuclear stress test showed normal myocardial 

perfusion imaging. A repeat EKG showed normal sinus rhythm without 

any significant abnormality. PAGEID 570. Dr. Sahu attributed 

plaintiff’s dyspnea to plaintiff’s smoking. Id. 

 Barbara Roth, M.D., has been plaintiff’s primary care physician. 

During an April 2009 office visit, Dr. Roth summarized plaintiff’s 

complaints of pain: “Getting in and out of a car increases his pain, 

so does bending, squatting, stooping or standing for more than 30 

minutes.” PAGEID 584. Dr. Roth noted that plaintiff “walks with an 

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obvious limp.” Id. She diagnosed “[c]hronic pain,” id., for which 

she prescribed morphine and Vicodin. Plaintiff’s hypertension, which 

was untreated at the time, was “uncontrolled.” PAGEID 584. Treatment 

for hypertension was begun and, at plaintiff’s next office visit, the 

condition was characterized as “controlled.” PAGEID 583. In June 

2009, plaintiff reported that he was trying to find work but Dr. Roth 

commented that plaintiff “will [n]ever be able to return to a job 

cutting down trees because of his problems.” PAGEID 582. During a 

July 2009 office visit, plaintiff reported to Dr. Roth that he had 

been “walking more.” PAGEID 580. In October 2009, and January 2010, 

plaintiff’s blood pressure was “at target” or “controlled.” PAGEID

586, 589. 

In October 2009, Walter Holbrook M.D., a state agency physician, 

reviewed the record and opined that plaintiff could frequently lift 

and carry up to 20 pounds occasionally and 10 pounds frequently; he 

could stand and/or walk for 6 hours throughout an 8-hour workday and 

sit for 6 hours throughout an 8-hour workday. PAGEID 555. However, 

noting plaintiff’s continued complaints of numbness and pain, Dr. 

Holbrook recommended that plaintiff be restricted from the use of left 

hand controls. Plaintiff’s left shoulder tendonitis would limit him 

to no overhead reaching. Id. Moreover, plaintiff should never climb 

ladders, ropes or scaffolds, nor should he crawl, and he should kneel 

and crouch no more than occasionally. PAGEID 556. “[F]eeling with 

the left a[r]m and fingers never.” PAGEID 557. Dr. Halbrook also 

recommended environmental restrictions. PAGEID 558. 

 In April 2010, Cindi Hill, M.D., another state agency physician, 

reviewed the record and concluded that plaintiff had the same 

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exertional limitations as found by Dr. Holbrook (i.e., light 

exertion), but that plaintiff had fewer postural and non-exertional 

limitations than were found by Dr. Holbrook. PAGEID 598-605. 

Significantly, Dr. Hill opined that plaintiff would have no 

restriction in his ability to use his hands. PAGEID 601. 

Administrative Hearing 

Plaintiff testified at the administrative hearing that he can 

perform some housework but that he relies on his adult daughter to 

vacuum and do the laundry. PAGEID 86. He goes grocery shopping. Id. 

 Plaintiff experiences shortness of breath after 5 to 8 minutes of 

exertion. PAGEID 87. Heat and cold weather cause breathing problems. 

PAGEID 94. He spends his days sitting on his porch or lying on his 

couch. He can sit for no more than 30 minutes before having to stand 

for 10 minutes. PAGEID 88. He can stand for no more than 30 minutes 

at a time. PAGEID 88. If permitted to alternate between sitting or 

standing, plaintiff estimated that he could stand for a total of only 

two to three hours during the day. PAGEID 89. He can walk on flat 

ground for only 1 1⁄2 blocks before he experiences shortness of breath. 

He has difficulty walking on uneven terrain because his leg is 

unstable. Id.

 His neck injury causes daily, constant pain. However, he uses 

only non-prescription pain medication, which is not effective, because 

of a lack of insurance. PAGEID 91. Plaintiff currently uses an 

inhaler for his breathing problems. 

 Plaintiff also complained of pain and numbness in his left hand. 

Although he can lift 20 pounds with his right hand, he cannot do so 

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with his left hand. PAGEID 92. He cannot lift his left hand much 

above shoulder level. PAGEID 92-93. 

At the May 2011 administrative hearing, plaintiff agreed that he 

has received no medical treatment since February 2010, PAGEID 101, 

initially attributing that fact to a lack of insurance. Id. He later 

testified, however, that he lost medical insurance in December 2010. 

PAGEID 104. 

 The vocational expert was asked to assume a claimant with 

plaintiff’s vocational profile who can lift and carry 20 pounds 

occasionally and 10 pounds frequently, who can occasionally climb 

ramps and stairs, bend, balance, stoop, kneel and crouch, but who 

cannot climb ladders, ropes or scaffolds and cannot crawl. The 

claimant could not operate hand controls, reach overhead, feel or 

engage in pushing or pulling with the left upper extremity and who 

must avoid concentrated exposure to extreme cold, vibrations and 

irritants such as fumes, odors, dust, gases, chemicals and poorly 

ventilated spaces. The claimant must avoid all exposure to hazards 

such as moving machinery and unsecured heights. The claimant could 

never operate motor vehicles. PAGEID 107-08. According to the 

vocational expert, such a claimant could not perform plaintiff’s prior 

work but could perform other light jobs, such as fast food worker (2.5 

million such jobs nationally), cafeteria attendant (134,000 such jobs 

nationally) and counter attendant (524,000 such jobs nationally). 

PAGEID 109. However, the vocational expert also testified that a 

sit/stand limitation would foreclose those jobs, however, “because 

most light jobs involve being on your feet all the time.” PAGEID 110. 

Moreover, assuming that the claimant “can’t really feel or grip with 

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[one] hand, that would seem to indicate to me problems with gross and 

fine manipulation . . . . And I don’t think they could do . . . the 

jobs that I identified.” PAGEID 113. 

Administrative Decision 

The administrative law judge found that plaintiff’s severe 

impairments consist of status post fracture of the cervical spine and 

surgery with residual pain/cervicalgia, status post open reduction 

internal fixation of a left tibia/fibula fracture with residual pain, 

and chronic obstructive pulmonary disease. PAGEID 56. Finding that 

plaintiff’s impairments neither meet nor equal a listed impairment, 

the administrative law judge went on to find that plaintiff has the 

residual functional capacity to perform 

light work as defined in 20 CFR 416.967(b) except he 

may occasionally climb ramps and stairs, bend, balance, 

stoop, kneel and crouch. He may never crawl or climb 

ladders, ropes or scaffolds. He may never operate hand 

controls, reach overhead, feel or engage in pushing or 

pulling operations with the nondominant left upper extremity. 

He must avoid concentrated exposure to extreme cold, 

vibration and irritants, such as fumes, odors, dust, 

gases, chemical and poorly ventilated spaces. He must 

avoid all exposure to hazards, such as moving machinery 

and unsecured heights. 

PAGEID 61. In making these findings, the administrative law judge 

accorded “significant weight” to the opinions of Drs. Holbrook and 

Hill, the state agency physicians. PAGEID 66. However, the 

administrative law judge did not address the fact that Dr. Holbrook 

restricted plaintiff’s ability to use his left arm for pushing, 

pulling, overhead reaching or feeling, and yet Dr. Hill imposed no 

restrictions on plaintiff’s ability to use his left arm. 

Although the residual functional capacity found by the 

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administrative law judge would not permit the performance of 

plaintiff’s past heavy work as a logger, the administrative law judge 

found that there are jobs that exist in significant numbers in the 

national economy that plaintiff could perform, including such jobs as 

fast food worker, cafeteria attendant and counter attendant. PAGEID

67. Accordingly, the administrative law judge concluded that 

plaintiff is not disabled within the meaning of the Social Security 

Act. 

Discussion 

 Pursuant to 42 U.S.C. §405(g), judicial review of the 

Commissioner’s decision is limited to determining whether the findings 

of the administrative law judge are supported by substantial evidence 

and employed the proper legal standards. Richardson v. Perales, 402 

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 

(6th Cir. 2005). Substantial evidence is such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion. 

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003); Kirk 

v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 

1981). This Court does not try the case de novo, nor does it resolve 

conflicts in the evidence or questions of credibility. Bass v. 

McMahon, 499 F.3d 506, 509 (6th Cir. 2007). 

 In determining the existence of substantial evidence, this Court 

must examine the administrative record as a whole. Kirk, 667 F.2d at 

536. If the Commissioner's decision is supported by substantial 

evidence, it must be affirmed even if this Court would decide the 

matter differently, Tyra v. Sec’y of Health & Human Servs., 896 F.2d 

1024, 1028 (6th Cir. 1990)(citing Kinsella v. Schweiker, 708 F.2d 1058, 

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1059 (6th Cir. 1983)), and even if substantial evidence also supports 

the opposite conclusion. Longworth, 402 F.3d at 595. 

 In his Statement of Errors, plaintiff complains that the 

administrative law judge failed to include left shoulder bursitis, 

tendinopathy in rotator cuff and hypertension in plaintiff’s severe 

impairments, improperly disregarded the opinions of Dr. Khosrovi and 

Dr. Roth and disregarded the testimony of the vocational expert. 

A. Severe Impairments 

 As noted supra, the administrative law judge found that 

plaintiff’s severe impairments consist of status post fracture of the 

cervical spine and surgery with residual pain/cervicalgia, status post 

open reduction internal fixation of a left tibia/fibula fracture with 

residual pain, and chronic obstructive pulmonary disease. PAGEID 56. 

Plaintiff contends that the administrative law judge improperly 

characterized bursitis and tendinopathy of the rotator cuff tendons 

and hypertension as non-severe. See PAGEID 58. There is substantial 

support in the record for the administrative law judge’s findings in 

this regard. 

Although a February 2008 MRI of the left shoulder documented 

subacromial bursitis and bursitis/tendinitis with mild tendinopathy of 

the rotator cuff tendons, Dr. Khosrovi, plaintiff’s treating 

neurosurgeon, characterized the condition as mild and directed no 

treatment for the condition. PAGEID 486, 488. Moreover, plaintiff’s 

hypertension, which was uncontrolled when untreated, see PAGEID 584, 

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was controlled with treatment. See PAGEID 586, 589.2 Because the 

record establishes that each of these impairments amount to no more 

than a "slight abnormality which has such a minimal effect on the 

individual that it would not be expected to interfere with the 

individual's ability to work, irrespective of age, education, or work 

experience," see Farris v. Secretary of Health and Human Services, 

773 F.2d 85, 89-90 (6th Cir. 1985) (quoting Brady v. Heckler, 724 F.2d 

914, 920 (11th Cir. 1984)), the administrative law judge did not err 

in failing to include them in the list of plaintiff’s severe 

impairments. 

B. Evaluation of Opinions of Drs. Khosrovi and Roth 

Plaintiff contends that the administrative law judge improperly 

rejected the opinions of his treating providers, Drs. Khosrovi and 

Roth. Specifically, plaintiff argues that the administrative law 

judge disregarded Dr. Khosrovi’s limitation to lifting less than 10 

pounds and precluding all pushing, pulling, bending and twisting. 

Statement of Specific Errors, PAGEID 635, and Dr. Roth’s finding that 

plaintiff “experiences severe, chronic pain, which is aggravated by 

getting in and out of a car, bending, squatting, stooping, and 

standing for longer than 30 minutes,” id., at PAGEID 636. 

The opinion of a treating physician must be afforded controlling 

weight if it is consistent with the evidence and supported by 

sufficient clinical findings. Smith v. Comm’r of Soc. Sec., 482 F.3d 

873, 877 (6th Cir. 2007). However, an ALJ is not bound by such an 

 

2 Plaintiff also makes passing reference to plaintiff’s cardiac condition. 

Statement of Specific Errors, PAGEID 634-35. However, plaintiff’s treating 

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opinion if there is substantial medical evidence to the contrary. Id. 

In addition, the ALJ is not bound by a physician’s conclusory opinion 

that a claimant is unable to work. See Bass v. McMahon, 499 F.3d 506, 

511 (6th Cir. 2007). 

Although Dr. Khosrovi temporarily imposed the restrictions 

referred to by plaintiff shortly after his September 2008 C7 

corpectomy, see PAGEID 542, 544, the weight restriction was raised to 

20 pounds by November 2008 and no other restriction was imposed, see 

PAGEID 546. Of course, the administrative law judge’s residual 

functional capacity assessment was not inconsistent with Dr. 

Khosrovi’s weight restriction. 

 Moreover, the administrative law judge did not improperly 

disregard Dr. Roth’s findings regarding plaintiff’s limitations by 

reason of pain. A fair reading of Dr. Roth’s April 2009 office notes 

makes clear that Dr. Roth was summarizing plaintiff’s subjective 

complaints, not imposing restrictions on plaintiff’s ability to 

function. See PAGEID 584. 

 In short, the Court concludes that the administrative law judge 

did not improperly disregard the opinions of plaintiff’s treating 

physicians. 

C. Vocational Evidence 

The administrative law judge stated that he relied on the 

testimony of the vocational expert in finding that plaintiff’s 

residual functional capacity, as found by the administrative law 

 cardiologist, Dr. Sahu, found no significant cardiac abnormality and 

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judge, did not preclude the performance of jobs that exist in 

significant numbers in the national economy. PAGEID 66. However, the 

residual functional capacity found by the administrative law judge 

included a limitation on plaintiff’s ability to “operate hand 

controls, reach overhead, feel or engage in pushing or pulling with 

the left upper extremity . . . .” PAGEID 108. Although the 

vocational expert initially testified that such a claimant could 

perform the jobs noted supra, she later testified that “if the person 

can’t really feel or grip with that hand, that would seem to indicate 

to me problems with gross and fine manipulation . . . . And I don’t 

think they could do . . . the jobs that I identified.” PAGEID 113. 

The administrative law judge made no reference to this portion of the 

vocational expert’s testimony. 

The record in this action reflects, at a minimum, an ambiguity in 

the evidence as it relates to plaintiff’s residual functional capacity 

and its impact on plaintiff’s ability to engage in substantial gainful 

employment. Under these circumstances, the Court concludes that the 

matter must be remanded to the Commissioner for further consideration 

of this issue. 

It is therefore RECOMMENDED that the decision of the Commissioner 

be reversed and that this action be remanded to the Commissioner of 

Social Security for further proceedings. 

 If any party seeks review by the District Judge of this Report 

 attributed plaintiff’s dyspnea to his smoking. PAGEID 570. 

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and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation, 

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. §636(b)(1); F.R. Civ. P. 72(b). Response to objections must be 

filed within fourteen (14) days after being served with a copy 

thereof. F.R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

 s/Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

Date February 6, 2013

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